Ex Parte Lockhart

GARDNER, J. This mandamus proceeding is to review the ruling of the circuit court retransferring, on plaintiff’s motion, the case of unlawful de-tainer of N. B. Smith versus George Lock-hart, originally brought in the municipal court of Birmingham, Eirst division, and which had been transferred to the circuit court by order of one of the circuit judges upon defendant’s petition. The demurrer to the petition takes the point that the original order of removal was improvidently granted upon the theory the verified petition therefor was lacking in jurisdictional averments, in that it failed to state defendant entered upon the land “not under claim of any agreement, contract or understanding with the plaintiff, or those under whom he claims.” We think the point well taken. A verified petition containing averments in substantial compliance with the essential elements named in the statute (section 8024, Code 1923) has been considered as a condition precedent to the removal ordei\ “Indeed, section 4283 [referring to Code 1907] requires, as a condition precedent to removal, that the defendant shall state in a sworn petition that he entered upon the land, not only peaceably, but under claim of title thereto, and not under any claim of any agreement, contract, or understanding with the plaintiff, or those under whom the plaintiff claims.” Self v. Comer, 166 Ala. 68, 52 So. 336, 337. See, also, Brown v. French, 159 Ala. 645, 49 So. 255. And in Briggs v. Prowell, 207 Ala. 629, 93 So. 590, such sworn petition containing these averments was held to be “necessary * * * essential * * * in order to bring this case * * * into the circuit court.” It is readily seen that the statutory language here omitted -from the petition for removal constitutes one of the most fundamental requirements of the statute, and with its omission the order was improvidently issued. This being made to appear to the circuit court by motion to set the same aside and retransfer the case tó the municipal court, we think the trial judge correctly ruled in granting the same, as the case was improperly brought into the circuit court in the first instance. The opinion here prevails that the demurrer to this petition should be granted, and the petition dismissed. Demurrer sustained; petition dismissed. ANDERSON, C. J., and BOULDIN and DOSTER, JJ., concur.